Truck driver wins dangerous driving appeal

Owner’s fitting of non-approved aftermarket brake linings found to be central to case

The Supreme Court of NSW found in favour of the truck driver

Employee truck driver Sarmad Nisan is free from prison after the New South Wales Supreme Court quashed his conviction over a crash in Dee Why in 2014.

The incident involving a fully-laden 10-tonne rigid that resulted in six injuries, including to two police officers, and eight cars crushed, came just a year after the Mona Vale disaster and was caught on many cameras, as was the more serious Mona Vale crash.

Nisan was jailed for three years in April but the court, sitting as the Court of Criminal Appeal, found he had been wrongly convicted and that the trial judge had failed to properly take into account aspects of expert evidence that led to a "reasonable doubt" regarding the prosecution’s case.

Brake failure leading to an inability to reduce speed to the limit required for the stretch of Warringah Hill road involved, as the defence contended, was deemed to be the nub of the case.

Evidence from the truck’s owner, the relevant mechanic and the truck manufacturer showed that while the brakes had been maintained, the owner had supplied the ‘after-market’ brake linings which had been used on the last occasion that they had been adjusted, the month before the collision.

The linings had not been recommended by the manufacturer, nor had they been tested by authorities after the incident to determine whether overheating had contributed to brake failure, though experts agreed in court that brake fading had occurred during the descent.

This and a crash scene investigator’s statement that, given the state of the steer-axle brakes, he would not have knowingly driven the truck and expert evidence that, had the brakes worked properly, they would have been able to stop the truck by themselves were held as crucial.

"The expert evidence ought to have led her Honour to the conclusion that the Crown could not exclude the possibility that it was the state of the brakes which had caused the collision, rather than Mr Nisan’s driving," the appeal ruling states.

It adds: "In concluding that Mr Nisan’s driving was dangerous, her Honour did not consider the evidence about whether the ‘after market’ brake linings had caused, or contributed to the brakes fading. That was relevant to the question of where it was that the brakes faded."

A not dissimilar case, involving Transpacific Cleanaway driver Darren Hicks, is in the Adelaide Magistrates Court following a fatal South Eastern Freeway crash involving evidence regarding truck brakes in 2014.